Free movement of Goods

Question 1

What does Article 34 do

Answer 1

Prohibits quantitative restrictions and measures having equivalent effect

Question 2

What do quantitative restrictions include

Answer 2

bans and quotas

Question 3

What do measures of equivalent effect include

Answer 3

A wide variety of measures about standards, size, content, naming of products, test, inspections, licensing, or marketing

Question 4

what does it mean for measures to be distinctly applicable

Answer 4

it only applies to imports

Question 5

what does it mean for measures to be indistinctly applicable

Answer 5

applies only to imports and home products as well

Question 6

when does article 34 apply

Answer 6

applies to measures taken by member state

Question 7

what does measures taken by member state include

Answer 7

laws, regulations, actions by government or public bodies (even if not binding) and may also include inaction.

Question 8

what does commission v ireland (buy irish) say

Answer 8

a government-sponsored body was held to be a breach of article 34 because it was sponsored by the government

Question 9

what case can be contrasted with commission v ireland (buy irish)

Answer 9

Apple and Pear Developement council v Lewis

Question 10

what does apple and pear development council v lewis say

Answer 10

The council was set up by statutory instruments and was the ministry of agriculture appointed the members of the council - was held that it could not advertise like private producer association but could promote specific varieties because of their particular qualities

Question 11

what does commission v ireland (dundalk) say

Answer 11

government put out a contrst specification which had to comply with irish standard specifcation, only 1 company was certified for this purpose in ireland - was held to be the opposite of article 34

Question 12

what does the r v royan pharmaceutical society say

Answer 12

RPS had a rule tht did not allow substitutes which could be cheaper to be imported from other member states - considered measure because of the rules

Question 13

what does commission v france say

Answer 13

farmers engagd with dispute, blockaded ports preventing imports of products from other MS - held, MS were under a duty to facilitate free movement of goods included preventing their own citizens preventing imports.

Question 14

what is essentially article 36

Answer 14

exceptions to article 34 and 35

Question 15

what cases talk about public morality

Answer 15

R v Henn and Derby and Conegate LTD v customs and excise commissions

Question 16

what does r v henn and derby say

Answer 16

impot of pornographic material could be banned if indecent or obscene - held it was discriminatory agaisnt imports but was not arbitrary therefore it could be justified by article 36

Question 17

what does conegate ltd v customs and excise commission say

Answer 17

sex toys were seized on import - however there wa no band on manufacture and sale only a restriciton on sale, meaning it could be sold in licenced shops - held that seizure was discriminatory and could not be justified by article 36.

Question 18

what cases talk about public security

Answer 18

Campus oil and cullet v centre leclerc

Question 19

what does campus oil say

Answer 19

it had an irish requirement for importers of oil to buy up to 35% of their petrol whihc was fixed by the minister, was used to maintain viable petroleum - held, maining the industry could be justified on the grounds of public security but the purchase requrement had o be necessary and the price competetive

Question 20

what does culle v leclerc say

Answer 20

claimed that minimum prices for petrol were justified - held, it had not been shown that voilers of such a level would result that it could not be controlled by the government.

Question 21

what cases can you use for the protection of health and life of humans animals and plants

Answer 21

Commision v UK (UHT milk) and Rewe-Zentralfinanz

Question 22

what does commission v Uk (uht milk) say

Answer 22

UK required UHT milk to be marked only by apporved dairies/distributers. All imported milk had to be retreated and repackaged evene if they were subject to similiar controls - held, both requirements were not justified by article 36, the milk had already been checked and info could easily been given.

Question 23

what does rewe-zentrafinanz say

Answer 23

fruit and veg were inspected, charge ws made for this inspection - held, inspections could be justified by article 36, but charging them could never be as it would amount to customs duty.

Question 24

What does dassonville say

Answer 24

a law required imported goods to have a certificate of origin. D imported whiskey from france and put his own certificate in it as the french seller could not - held, certificate was breach of article 34 as if was capable of hinder intercommunity trade.

Question 25

what is the dassonville formula

Answer 25

all trading rules … capable of hindering, directly or indirectly, actually or potentially, intra-community trade are considered as measures having an effect equivalent to quantitative restrictions

Question 26

what are the two cases following the dassonville formula

Answer 26

egges v freie and openbaar v van tiggle

Question 27

what does eggers v freie say

Answer 27

concerned a quality designation reserved for an alcoholic drink which had to contain 85% spirits distilled - this was a measure equivalent to a quantitative restriction

Question 28

what does openbaar v van tiggle say

Answer 28

concerned a minimum selling price for spirits - held to be a MEQR as it could prevent the lower price of goods being promptly reflected in the sale price.

Question 29

what were the effect of keck and later cases?

Answer 29

certain selling arangements do not fall within the scope of article 34 provided they are non-discriminatory allowing equal market access. this meant that product requirements that affect the goods themselves may only be justified under article 35/cassise but other non-discriminatory selling arangements do not fall withing the scope of article 34 at all

Question 30

in summary, what does dassonville say

Answer 30

distinct - discriminates imports using article 36

indistinct - non-discriminatory of imports using article 36, caissise and keck

Question 31

what does the case of keck and mithoud say

Answer 31

D’s were prosecuted under a law which forbade resales at a loss, whihc were good techniques for new importers trying to establish themselves on the market - held, certain non-discriminatory selling arrangements do not fll within article 34 therefore not a breach.

Question 32

what does hunermund say

Answer 32

body of pharmacists prohibited advertising out chemist shoopers of porducts they were authorise to sell - keck applied, this was non-discriminatory selling arrangement

Question 33

what are the few other cases that were exempted by keck

Answer 33

tankstation, punto casa, leclerc and belgapom

Question 34

what case did not follow keck because it was based on its own facts

Answer 34

Dip spa
italian law required new shops to have a special licence - held, the requirement was to uncertain and indirect to hinder the community trade

Question 35

what does commission v ireland (protection of animal health say)

Answer 35

irish government required an import licence for certain animal products - said, exceptionally this licence could be permitted because of the very high standard of irish pultry

Question 36

what does commission v UK ( imports of pultry meat) say

Answer 36

concerned a ban on imports of poultry to prevent the spread of a disease, french had taken steps to eradicate this disease - held, ban was disproportionate because there were no substantial risk due to the steps the french had taken

Question 37

which cases proved the Eu acceptance for intellectual property rights

Answer 37

terapin v teranova, thetford corpn v flamma spa and keurkoop BV

Question 38

what can exceptions do?

Answer 38

they can block imports

Question 39

What are the examples of exceptions

Answer 39

compulsory licence
goods coming from outside the EU
luxury goods (but only on rare occassions)
repackaging

Question 40

What does centrafarm BV say

Answer 40

drugs called x and y were almost chemically identical, x sold in UK and y sold in the Netherlands. c wanted to import x into the Netherlands and call it y - held, although trademark owner could usually stop unauthorised use of trademark, this was no so whereas in this case trademarks would be used to split the market on national lines.

Question 41

what case can be used to provide proof of exception on the lines of repackaging

Answer 41

PFIZER INC

Question 42

what does pfizer inc say

Answer 42

P made tablets and sold them in the UK and Germany, D imported them from the UK to german, repackaging them like the german tablets but leaving the original packagin untouched and visible - held this import could not be prevented because the repackagin was admitted.

Question 43

what other exceptions were not contained in the treaty?

Answer 43

Cassis

Question 44

What happened in Cassise

Answer 44

German law required certain spirits to have at least 25% alcohol, German cassis did but french cassis did not. German importers of French cassis challenged the law.

Question 45

What was held by the court in cassis

Answer 45

German law could be justified on the absis of consumer protection but it would be disproportionate as labelling requirement would have sufficed.

Question 46

what was the first rule in cassis

Answer 46

the rule of reason - where such law is acceptable if needed to satisfy ‘mandatory requirements’.

Question 47

what are ‘mandatory requirements’

Answer 47

further exceptions to article 34 - the court added improvement of working conditions, environment protection, the legitimate interest of social and economic policy and culture. However, it can only be applied in respect of indistinctly applicable measures.

Question 48

What happened in the case of commission v Ireland (restrictions on importation of souveniers)

Answer 48

Irish government required imported souvenirs to be marked as foreign, this was to distinguish imported fakes from genuine ones. ECJ said this could be in the interest of consumer protection and fair trading - However, the mandatory requirement could not be used as the measure only applied to imports. Article 36 exceptions could not be adapted to either

Question 49

what was the second rule in cassis

Answer 49

the rule of mutual recognition
if the goods have been lawfully produced and marketed in one member state, they should be capable of being introduced into another (unless a mandatory requirement or article 36 exception prevents it).

Question 50

what happened in Duphar v Netherlands

Answer 50

A dutch regulation listed approved durgs, also only onees which would be paid for out of public funds. this could be justified in the interest of consumers.

Question 51

what happened in commission v UK (origin marking)

Answer 51

UK legislation required origin marking of retailed goods - this was held by the ECJ to be a breach of article 34 and could not be justified by article 36 or by the mandatory requirement for consumer protection under cassis

Question 52

what happened in the case of diensten v beele

Answer 52

A dutch company sought to stop german made equipment coming into the netherlands on the basis that it was a “slavish imitation” of a dutch product - the ECJ siad the use of the dutch law for this purpose was permitted for defence of the consumer as a mandatory requirement from cassis.

Question 53

what case can be contrasted with beele

Answer 53

Prantl

Question 54

What happened in the case of prantl

Answer 54

P imported italian wine into german in similar bottles to th german ‘bocksbeutel’ which in germany designated a high quality of wine produced in a particular part of germany - p was prosecuted but it failed, the italian bottle was traditionally in italy and accorded with their practice - this was an application of the second rule in cassis.

Question 55

what happened in the case of commission v Belgium

Answer 55

law in walonia prevented storage tipping of waste from other member states or other parts of belgium - held to be justified by ECJ who added another ground to the list in cassis for protection of the environment.